NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSALINDA AQUINO-SANCHEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-73684 

Agency No. A205-713-007 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 15, 2023**

Pasadena, California

Before: WALLACE, HURWITZ, and BADE, Circuit Judges.

Rosalinda Aquino-Sanchez, a Mexican citizen, petitions for review of the 

Board of Immigration Appeals’ (BIA) order denying her motion to reopen removal 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

proceedings sua sponte.1 Because the BIA’s denial of sua sponte reopening did not 

rely upon “legal or constitutional error,” we lack jurisdiction and therefore dismiss 

the petition. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

Aquino states that she entered the United States in July 2000 and has not 

departed the country since. Her mother is a lawful permanent resident and Aquino’s 

four children are U.S. citizens, including a daughter who was diagnosed in 2015 with 

a learning disability that requires hours of special education per week.

Aquino was placed into removal proceedings in 2013 and applied for 

cancellation of removal. After that application was pretermitted, Aquino appealed, 

and the BIA dismissed her appeal in May 2016. In April 2020, Aquino filed a motion 

seeking reopening of her removal proceedings pursuant to the BIA’s sua sponte 

authority under 8 C.F.R. § 1003.2(a). Aquino contends that, despite the untimely

motion, she has an “exceptional and extremely unusual hardship” under 8 U.S.C. § 

1229b(b)(1)(D) that warrants reopening: if Aquino is removed to Mexico and her 

daughter accompanies her, her daughter will be deprived of the necessary special

education for her learning disability, which is not readily available in Mexico. 

Aquino’s petition for review argues that the BIA never considered this argument, 

1 The BIA also denied Aquino’s motion to reopen as untimely. Aquino’s 

petition for review does not contest that decision.
3 

and instead issued a “boilerplate” decision that did not constitute an individualized 

review as required. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).

The decision to reopen sua sponte is left to the BIA’s discretion. See 8 C.F.R. 

§ 1003.2(a); Bonilla, 840 F.3d at 585–86. The BIA invokes such authority 

“sparingly, treating it not as a general remedy for any hardships created by 

enforcement of the time and number limits in the motions regulations, but as an 

extraordinary remedy reserved for truly exceptional situations.” In Re G-D-, 22 I. 

& N. Dec. 1132, 1133–34 (B.I.A. 1999). 

We generally do not have jurisdiction to review the BIA’s denial of sua

sponte reopening because “the ‘exceptional situation’ benchmark does not provide 

a sufficiently meaningful standard to permit judicial review.” Bonilla, 840 F.3d at 

586. We do have jurisdiction to review the denial, however, if the BIA’s reasoning 

behind the decision consisted of a “legal or constitutional error.” Id. at 588.

Aquino, however, has not demonstrated either legal or constitutional error by

the BIA. The BIA may commit legal error by providing only a “cursory and 

generalized analysis” explaining its decision not to reopen, but here the BIA

provided a statement addressing Aquino’s specific situation. Arrozal v. INS, 159 

F.3d 429, 433 (9th Cir. 1998). Although its analysis was brief, the BIA’s order 

denying sua sponte reopening acknowledged that Aquino’s U.S.-citizen daughter 

has a learning disability, indicating individualized consideration of Aquino’s 
4 

motion. Id. at 433. Moreover, Aquino has not overcome the presumption that the 

BIA reviewed her evidence. Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 

2006).

PETITION FOR REVIEW DISMISSED.